M VENKIAH Vs. K CHINA PUNNIAH

JUDGEMENT

(1.) This is a petition for quashing the order of the Sub Divisional Magistrate, Guntur, in M. C. No. 89 of 1955 passed under section 112 Cr. P. Code calling upon the petitioners to show cause why they should not be ordered to execute a bond for Rs. 500/- each with two sureties for Rs. 500/-for keeping the peace for a period of one year under Section 107, Cr. P. Code. It was urged that sections 107, 112 and 123, Cr. P. Code had become void under Art, 13 of the Constitution by reason of their repugnancy to Art. 22 (4) to (7). The argument proceeded some what on the following lines : Section 107 Cr. P. Code enables a Magistrate, who has received information that a person within the local limits of his jurisdiction is likely to commit a breach of the peace or disturb the public tranquility, to require such person to show cause why he should not be ordered to execute a bond, wither without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit. Section 117 provides for an enquiry by the Magistrate into the truth of the information and section 118 directs that if upon such enquiry, it is proved that it is necessary for maintaining the peace that the person concerned should execute a bond, with or without sureties, the Magistrate shall make an order accordingly. Section 123, Gr. P. Code provides that if any person ordered to give security under section 118 does not give such security on or before the date on which the period for which the security is to be given commences, he shall be committed to prison until the expiry of such period or until security is given. Detention in prison under section 123, Cr. P. Code is not punitive detention by way of punishment following a conviction for an offence but is preventive detention imposed as a precautionary measure on default of furnishing security. No offence is proved, nor is any charge formulated and the justification for such detention is suspicion and not a conviction for any offence based on legal evidence. Article 22 of the Constitution deals precisely with a similar situation and provides limitations on the exercise of the power of preventive detention and safeguards for personal freedom which are absent from section 123, Cr. P. Code. The absence in Chapter VIII of the Cr. P. Code of a provision corresponding to Art. 22 (4) of the Constitution which provides that no person could be detained for more than three months unless an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention, was a serious omission operating to the prejudice of the petitioners. I am in agreement with the contention of the learned Advocate for the petitioners that detention in prison as a result of orders under sections 107,118 and 123 Cr. P. Code is a kind of preventive detention and a sort of precautionary measure and not a punitive detention. The fact that imprisonment follows as the result of a failure or refusal to give security does not make it a punishment inflicted for a crime. The reason for the imprisonment imposed under section 123, just as in the case of detention under Preventive Detention Acts, is the maintenance of public safety or public peace, though other reasons might also justify an order of preventive detention. The fact that a person proceeded against under sections, 107, 117 and 123, Cr. P. Code could avoid imprisonment by giving security, if he chose, shows that the detention under section 123 is precautionary and preventive and not punitive. It does not, however, follow from this circumstance that sections 107, 117, and 123, Cr. P. Code are repugnant to Art. 22 of the Constitution for, in my opinion, they deal with different situations and different classes of persons, Art. 21 of the Constitution runs as follows ;

(2.) It is not without significance that while the Preventive Detention Act was almost the first target of attack on the ground of its unconstitutionality after the coming into force of the Constitution (A. Gopalan v. The State of Madras ') the provisions of Chapter VIII of the Cr. P. Code were not challengged as unconstitutional till recently. The provisions of Article 22(4) to (7) must have been intended to apply to abnormal situations in the country and to dangerous groups of persons whose activities might endanger the defence of India, the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community. Therefore an Advisory Board functioning in camera and not bound to give a personal hearing to the defence or even to communicate to him information which it is considered to be against the public interest to disclose, is set up under Art. 22 (4) of the Constitution. Chapter VIII of the Criminal Procedure Code deals with less important folk like vagrants, roughs and bad characters whose activities are not likely to be of so serious a character from the point of view of public safety or the maintenance of public order but who nevertheless indulge in anti-social activities, in their own humble way, in their neighbourhood or in a limited sphere. Chapter VIII deals with the four classes of persons, disturbers of public peace, vagrants, habitual offenders and bad characters and provides for taking security for their keeping the peace or maintaining good behaviour. Detention follows only if security is not furnished and could be avoided or terminated by furnishing security. Art. 22 (4) to (7) applies to cases where detention is compulsory and cannot be avoided by giving security. I hold therefore that there is a rational basis of classification or differentiation between the persons dealt with under Chapter VIII of the Cr. P. Code and those dealt with under Preventive Detention Laws and that the provisions of Chapter VIII of the Cr. P. Code and Art. 22 (4) to (7) of the Constitution apply to different situations and classes of persons. The classification is not arbitrary but rests upon differentia having a rational relation to the purpose and object sought to be attained by the two sets of provisions. The guarantee against the equal protection of the laws merely means that there should be no discrimination between one person and another if, as regards the subject- matter of the legislation, their position is the same. Chapter VIII of the Cr. P. Code is not repugnant to Art. 22 of the Constitution. Nor is it discriminatory in character. I am further of the opinion that far from persons proceeded against under Chapter VIII, Cr. P. Code being unfavourably discriminated against, they are given substantial procedural rights and advantages which the detenus under Preventive Detention Laws do not have. Chapter VIII Cr. P. Code is part of the ordinary and well-established Criminal Procedure and has for a long time been a part of the general law of Criminal Procedure in this country. It has its counter-part in the vagrancy laws of other countries. In A. K. Gopalan v. State of Madras . refering to Art. 22 (3) to (7) of the Constitution, Patanjali Sastri J. said :

(3.) The mischiefs which Chapter VIII Cr. P. Code were intended to prevent were neither so grave nor had they such far reaching consequences as those which Preventive Detention Laws were intended to avert. Indeed, the primary purpose of the proceedings under Chapter VIII is to take security for keeping. the peace or for good behaviour after a judicial inquiry while the primary object of Preventive Detention Laws made in conformity with Article 22 (4) to (7) of the Constitution is to imprison a person by executive action without judicial enquiry. For these reasons, I dismiss the Criminal Miscellaneous Petition.T. A. B. Petition dismissed.